WAR  ?  ?  Or  Judicial  Settlement 

Of  International  Disputes? 


A  REPLY 

TO 

Dr.  JAMES  BROWN  SCOTT 

Secretary  of  the  American  Society  for 
Judicial  Settlement  of  International  Disputes. 

Author  of  "THE  STATUS  OF  THE  INTERNATIONAL  COURT  OF  JUSTICE"  Published 

in  Nos.  15  and  16  of  the  Quarterly  Issues. 


Nobody  can  read  his  able  article  without  gaining  the 
impression  that  the  way  for  Judicial  settlement  is  fully  laid 
out,  and  that  it  merely  takes  the  consent  of  the  Powers 
to  create  a  Court  which  would  do  away  with  war,  and 
would  justly  and  amicably  settle  Internationa]  disputes. 
This,  the  first  impression  gained  from  rending  his  article, 
is  wrong 

BV 

N.  JOHANNSEN, 

Author  of  "A  Neglected  Point  in  Connection  with  Criie»." 
^»      ^  ^ 

ROSEBANK,  NEW  YORK, 
September,  1914. 


Often  you  hear  people  ask:  Why  should  there  be  war?  Why 
don't  governments  apply  to  the  Hague  tribunal  whenever  they  can't 
agree  with  each  other?  Why  do  they  prefer  to  go  to  war  rather 
than  submit  their  disputes  to  the  International  Court  of  Justice,  and 
abide  by  its  decision? 

Mr.  J.  B.  Scott  has  explained  the  reason  in  a  very  lucid,  very 
able  treatise,  recently  published  by  the  American  Society  for  Ju- 
dicial Settlement  of  International  Disputes.  He  points  out  that  the 
so-called  "Permanent  Court"  now  existing  at  the  Hague,  is  more  a 
matter  of  name  than  of  reality;  and  that,  in  fact,  it  is  nothing  like 
what  ordinarily  is  understood  by  a  "Court  of  Justice."  Whenever 
a  government  feels  grieved  at  the  action  of  another  government,  it 
cannot  go  to  the  Hague  tribunal  and  ask  for  relief;  it  can  only  in- 
vite the  other  government  that  both  of  them  settle  their  dispute  peace- 
ably at  the  Hague — in  which  case  each  one  of  the  two  governments 
sends  one  or  two  judges  over,  and  these  judges,  after  choosing  an 
umpire,  constitute  a  Court — which  Court  convenes  only  for  the  sake 
of  that  individual  dispute,  and  disbands  after  rendering  judgment 
on  same. 


Now  really,  for  such  kind  of  proceeding  we  hardly  need  the 
Hague.  I  hat  can  be  done,  almost  as  well,  by  regular  diplomatic 
action.  And  the  above-named  Society,  fully  aware  of  the  fact  that 
the  chief  motive  for  seeking  judicial  settlement  has  so  far  been  lack- 
ing, is  trying  hard  for  the  establishment  of  a  real  Court  of  Justice 
which  leaves  ,t  no  longer  to  the  option  but  makes  it  compulsory  for 
the  member-Powers  to  have  their  disputes  settled  through  that  Inter- 
national Court,  and  abide  by  its  award. 

In  other  words,  while  at  present  both  of  the  quarreling  nations 
would  have  to  apply  at  the  Hague  before  the  Court  takes  action, 
it  then  would  take  only  one  nation  to  apply  and  make  complaint, 
while  the  other  would  be  summoned  by  the  Court,  to  respond  if  a 
member-Power.  And  there  would  not,  as  now,  be  a  special  Court 
appomted,  for  each  special  case,  but  a  permanent  Court  would  rule 
its  members  be.ng  chosen  by  the  member-Powers,  and  retaining  office 
for  twelve  years.  A  substitution  of  judicial  judgment  for  mere  arbi- 
tration. 


This  proposition  was  discussed  at  the  Hague  Conference  of 
1907,  but  not  accepted,  principally  because  a  suitable  basis  for 
selecting  the  judges  could  not  be  found — naturally  a  vital  point. 
It  was  thought  that  no  more  than  fifteen  judges  could  be  employed 
to  advantage,  and  as  there  were  44  member-Powers,  the  smaller 
ones  of  these  feared  they  would  not  be  properly  represented  if  only  the 
I  5  larger  ones  had  the  privilege  to  send  a  representative.  To  over- 
come this  difficulty  it  has  recently  been  suggested  that  only  the  large 
Powers,  8  or  9  of  them,  should  start  the  judicial  Court,  this  under 
the  presumption  that  the  smaller  Powers  would  join  later  on  when 
seeing  an  accomplished  fact  before  them,  and  would  then  no  longer 
insist  upon  installing  representatives  of  their  own. 

This  suggestion  sounds  very  plausible;  and  such  being  the 
present  status  of  the  movement,  it  looks  indeed  as  though  it  merely 
took  the  consent  of  the  Powers  to  make  an  end  to  wars.  But  would 
such  a  "judicial"  international  Court  really  fill  the  bill?  I  see 
three  grave  objections  to  it:  first,  no  guarantee  of  impartial  and  really 
judicial  judgment;  second,  no  code  of  sufficient  amplitude  to  form 
the  basis  of  international  law;  third,  no  method  pointed  out  for 
enforcing  a  judgment.  Let  us  consider  these  three  objections  sepa- 
rately. 

FIRST,  Partiality. — Such  indeed  must  be  expected  of  a 
judge  who,  under  present  conditions,  were  picked  out  to  go  to  the 
Hague  and  sit  on  a  case  of  his  own  nation  against  another.  It 
was  this  point  which  prompted  Senator  Elihu  Root  to  advocate, 
instead  of  the  present  "merely  arbitral"  temporary  Courts,  a  per- 
manent Court  composed  of  judges  "acting  under  the  sanctity  of  the 
judicial  oath,  under  a  sense  of  judicial  responsibility,  men  of  such 
dignity,  consideration  and  rank  that  the  best  and  ablest  jurists  would 
accept  appointment  to  it,  and  would  pass  upon  questions  between 
nations  with  the  same  impartial  and  impersonal  judgment  as  we  are 
used  to  on  the  part  of  the  Supreme  Court  of  the  United  States." 

But  has  our  Supreme  Court  always  proved  to  be  impartial? 
Let  us  refer  to  the  Presidential  Election  of  1876.  The  democratic 
candidate,  Tilden,  had  undoubtedly  been  elected,  as  well  by  a  ma- 
jority of  the  people  as  by  a  majorityof  the  States,  but  the  Republicans, 
then  in  power,  tried  to  undo  him,  bringing  up  points  which  never  had 
been  guiding  before.  They  appealed  to  the  Supreme  Court.  As 
this  body  consisted  of  five  Republicans  and  four  Democrats,  I  offered 
a  man  a  bet  that  the  decision  would  be  rendered  strictly  according 
to  party  lines.     He  resented    my  view,  claiming  that  men  of  such 


4 


undoubted  integrity,  would  not  be  biased  by  party  prejudice.  But 
I  won  my  bet. 

Does  not  that  decision,  a  historical  fact,  fully  prove  that  even 
the  best  men  are  apt  to  be  guided  by  personal  inclination?  And 
how  much  more  would  such  be  the  case  with  men  of  different  nation- 
alities, sitting  in  an  international  Court?  Would  not  they  naturally 
have  a  weakness  for  their  own,  or  a  befriended  nation? 

You  may  say  "Ay,  in  1876  we  did  not  have  the  laws,  made 
since,  which  govern  the  details  of  Presidential  elections.  It  could 
not  now  occur  any  more  that  a  President  were  installed  by  counting 
him  in,  though  not  elected." — Quite  true.  But  what  does  that  prove? 
That  in  international  law,  which  has  been  but  little  developed,  and 
which  leaves  so  many  points  open  for  decision  by  sentiment,  this  latter 
factor  will  predominate  to  a  much  larger  extent,  than  in  our 
domestic  courts. 

Such  being  the  fact,  how  would  Germany  fare  in  an  Inter- 
national Court  formed  by  delegates  from  nine  Powers,  of  which 
only  one,  Austria,  would  be  friendly  and  the  remaining  seven  antag- 
onistic to  her?*  Had  ;he  a  grievance  which  were  plainly  covered 
by  international  law,  there  would  probably  be  no  necessity  for  her 
to  apply  to  the  Court,  but  if  not  fully  covered  by  the  international 
code,  leaving  the  award  subject  to  the  opinion  and  sentiment  of 
the  judges,  could  she  be  sure  of  finding  justice  and  an  impartial 
decision  at  the  hands  of  the  Court? 

It  is  from  doubts  in  this  line  that  most  other  nations  have  hesi- 
tated to  tie  themselves  down  to  submission  to  a  set  of  judges  the  im- 
partiality of  whom  they  may  not  be  sure  of — whose  award  may  be 
influenced  by  regards  for  their  own  countries  and  their  allies,  also 
by  public  opinion  current  in  the  press  of  the  leading  nations — not 
even  considering  the  possibility  of  bribe,  where  large  interests  are 
at  stake. 

'Germany  has  almost  no  friends  abroad — a  peculiar  fact.  The  reason  must 
be  found  in  the  lack  of  diplomatic  ability  of  the  Germans,  which  lack  extends 
to  the  whole  of  the  people  (excepting  the  Jews),  so  much  so  that  they  do  not 
know  how  to  swim  along  with  others  or  how  to  make  friends  abroad.  Besides, 
they  lack  aggressiveness,  and  the  ability  to  assert  themselves,  even  where  they 
have  the  power.  Other  nations,  of  aggressive  character,  stand  ready  to  take 
advantage  of  this,  thinking  German  territory  an  easy  prey  to  combined  action: 
France  would  want  the  Alsace;  Japan,  Kiau-Chau;  Italy,  Istria;  Russia,  some 
Baltic  provinces;  and  England  would  be  glad  to  destroy  Germany's  fleet  and 
merchant  marine,  so  as  to  suppress  an  inconvenient  competitor  in  the  world's 
ocean  trade.  Such  being  the  disposition  among  the  leading  powers,  most  likely 
shared  in  by  the  delegates  of  these  powers,  sitting  in  Court,  Germany's  chances 
for  meeting  impartial  justice  in  that  Court  would  not  be  encouraging. 


5 


SECOND,  Lack  of  a  Code. — True,  a  large  amount  of  ma- 
terial has  already  been  codified,  quite  respectable  for  a  beginning; 
but  not  sufficient,  by  far,  to  cover  the  majority  of  cases  likely  to  be 
submitted  to  the  International  Court. 

It  is  held  that  the  expansion  of  the  Code  will  develop  gradually, 
as  cases  come  up  and  awards  are  made — the  same  as  the  development 
of  our  civic  cod«)  was  a  gradual  affair.  In  the  meantime,  however, 
the  usefulness*  of  the  two  codes  is  not  alike,  the  guidance  offered  by 
the  one  being  ample,  by  the  other  but  scant — and,  being  scant,  there 
would  be  too  much  scope  left  for  the  international  judges  to  go  by 
mere  opinion  and  sentiment;  this  is  just  what  the  governments  feel 
uneasy  about. 

It  is  far  easier  to  make  the  nations  submit  to  a  code  of  inter- 
national law  than  to  a  set  of  judges.  And  if  so,  the  peace  movement 
should  first  of  all  endeavor  to  get  up  a  code,  ample  enough  to 
cover  most  of  the  disputes  likely  to  come  in.  To  do  that,  past-history 
should  be  consulted,  and  thousands  of  cases  examined  to  consider 
what  laws  would  be  required  to  do  justice  to  each  case  if  it  came 
up  before  the  Court.  I  believe  a  suitable  comprehensive  code  to  be 
the  first  requirement  for  attaining  the  judicial  settlement  which  we  are 
after. 

THIRD,  Enforcement. — Can  we  depend  upon  a  loyal  com- 
pliance with  any  sentences  the  International  Court  may  decree? 
Hardly,  unless  there  be  some  means  of  enforcement.  Nations  are 
not  always  ready  to  fulfill  international  obligations  if  it  don't  suit 
them.  I  remember  a  case  where  England,  in  the  course  of  arbitra- 
tion, was  sentenced  to  pay  a  sum  of  money — but  a  number  of  years 
later  the  amount  was  still  unpaid ;  perhaps  even  now.  And  look  at 
Italy!  For  many  years  she  was  a  member  of  the  triple  alliance, 
and  was  in  duty  bound  to  help  her  allies  as  soon  as  England  joined 
France  in  making  war  upon  same,  but  she  simply  refused,  offering 
the  preposterous  excuse  that  England  had  not  formally  declared 
war,  but  had  merely  stated  to  be  on  a  war  footing  with  Germany. 
And  did  Europe  resent  her  for  this  breach  of  promise?  Not  at  all! 
Just  the  reverse,  the  leading  Powers  lauded  her  for  her  faithless  action, 
and  are  even  coaxing  her  to  heap  crime  upon  injury,  by  drawing  the 
sword  against  her  very  ally. 

Such  being  the  sentiment  at  present,  in  regard  to  fulfilling  in- 
ternational obligations,  what  can  we  expect  as  to  the  fulfillment  of 
obligations  imposed  upon  nations  by  the  International  Court,  unless 


6 


there  be  some  means  of  enforcement?  This  point  seems  to  have 
been  neglected. 

*  *  * 

The  above  three  difficulties — danger  of  partiality  among  the 
judges,  lack  of  a  suitable  code,  and  inability  to  enforce  the  fulfill- 
ment of  obligations  which  may  result  from  international  decisions — 
seem  to  be  the  main  reason  why  an  International  Court  has  not  been 
established  so  far.  I  should  not  wonder,  however,  that  this  will  be 
done  after  the  war  is  over,  under  the  lead  of  the  victor.  Maybe  that 
the  aggressive  nations,  those  that  are  hungry  for  aggrandizement, 
will  join  to  form  an  International  Court  among  themselves:  France, 
England,  Russia,  Italy,  Servia,  Greece,  Japan.  A  certain  com- 
munity of  interest  will  do  its  part  to  secure  harmonious  action  among 
them,  so  they  will  rule  the  world.  The  United  States  will  no  doubt 
join,  and  also  the  rest  of  the  Powers  can  hardly  do  better  than  to 
follow  suit.  Then  we  will  have  an  International  Court;  not  exactly 
one  built  up  on  those  ideal  principles  which  are  now  guiding  the 
advocates  of  the  peace  movement,  but  one  that  will  work  and  which 
will  certainly  be  an  improvement  over  present  conditions. 


THE  CRIPPLING  OF  OUR  EXPORT  TRADE. 

WAR  RISKS  ON  THE  OCEAN. 
DISTURBANCE  OF  OUR  DOMESTIC  BUSINESS 
PARALYZING  TRADE  ALL  OVER. 
WHOSE  DOING  IS  ALL  THIS? 


Whose  doing  it  is?  Why,  of  course,  the  War  Lord's.  He 
plunged  the  world  into  war,  glory-mad  as  he  is.  Were  the  conse- 
quences merely  falling  on  his  own  country,  we  might  stand  by  and 
pity  his  people;  but  why  should  we,  here  in  America,  be  made  to 
suffer  from  his  doings? 

This  is  the  sentiment  shared  in  by  almost  every  American. 
He  takes  his  cue  from  the  daily  press,  and  the  American  press  very 
largely  takes  its  cue  from  the  English. 

Is  it  really  the  War  Lord  who  broke  the  peace,  and  precipi- 
tated the  war?  The  emperor  who  for  twenty-five  years  of  peaceful 
government  has  so  often  shown  his  hand  as  a  peacemaker,  and  to 
whom  even  our  Carnegie  conceded  that  he  was  a  Lord  of  Peace? 
The  Emperor  who  up  to  the  very  last  day  tried  hard  to  avert  the 
war,  and  gave  up  his  endeavors  only  because  he  had  to  stand  by  his 
ally?  Must  we  look  to  him  as  the  cause  of  our  troubles?  Hardly. 
The  real  cause  of  the  great  war  lies  with  Russia,  inasmuch  as  she 
declared  she  would  help  her  Slav  brothers  in  Servia  against  Austria. 
And  as  to  our  own  troubles  we  must  neither  look  to  Germany  nor 

to  Russia,  but  to  England. 

Had  the  Emperor  had  his  own  way  there  would  be,  in  spite  of 
the  war,  an  open  sea,  and  no  interference  with  ocean  traffic.  But 
that  is  not  what  would  suit  England. 

She  upholds  her  unique  position  as  master  of  the  sea  (and 

therewith  of  the  world's  trade)  not  so  much  by  her  tremendous  fleet 

as  by  the  mean,  contemptible  principle  of  piracy.    Cut  this  out,  and 

most  of  England's  power  is  gone. 

*  *  * 

Why  should  private  property  at  sea  be  proscribed  and  subject  to 
confiscation  during  war,  while  private  property  on  land  is  not.  Why 
should  not  the  rights  of  the  owner  to  his  property  be  the  same,  and 
be  respected  the  same,  whether  it  be  a  ship  within  the  enemy's  reach, 
or  a  house  within  his  reach,  or  property  within  the  house.    If  a  ship 


8 


belonging  to  a  peaceable  citizen  were  seized  by  a  regular  pirate,  the 
latter  would  be  doomed,  if  caught.  If  seized  by  the  enemy,  how- 
ever, the  act  is  legal,  and  a  matter  of  praise. 

But  for  England's  resistance,  a  common-sense  international  law 
covering  this  subject  would  have  been  agreed  on  long  ago;  and  in 
that  case  our  export  and  import  trades  would  not  now  be  suffering 
the  way  they  are,  from  the  present  war.  The  adoption  of  such  a 
law,  however,  and  the  limitation  of  the  horrors  of  naval  warfare 
which  it  would  bring  about,  is  not  what  England  wants.  She  preferi 
to  strike  at  both,  the  enemy's  navy  and  the  enemy's  trade — and 
is  more  pleased  than  worried  if,  in  consequence,  the  trade  of  neutral 
countries  suffers  too.  That  makes  her  own  power  all  the  more  felt, 
all  the  more  formidable. 

Under  a  common-sense  agreement,  such  as  we  ought  to  have, 
German  and  French  and  English  merchantmen  should  carry  on 
their  traffic  as  before,  without  fear  of  being  seized,  except  if  a  port 
were  closed  by  blockade  and  a  ship  were  caught  in  trying  to  run 
the  blockade — then  of  course  it  would  be  taken.  Nor  should  mer- 
chantmen be  stopped  on  the  way  and  searched  for  contraband  goods ; 
a  warring  nation  should  be  privileged  to  obtain  such  just  as  well  by 
water  as  from  a  neighboring  friendly  country  by  land. 

These  ideas  may  seem  Utopian.  But  I  think  we  will  get  there 
in  course  of  time.  Meanwhile  we  should  try  hard  for  some  sort 
of  agreement  to  alleviate  the  unnecessary  hardships  now  imposed  by 
naval  powers  on  peaceable  ocean  traffic.  And  we  should  remember 
that  it  is  England  who  obstinately  opposes  all  progress  in  this  di- 
rection; that  it  was  her  who  refused  to  participate  in  the  modifications 
of  prize-court  regulations,  adopted  by  the  Naval  Conference  of 
1 909 ;  also  that  her  contraband  definitions  are  exceedingly  drastic 
and  severe.  Let  us  remember  that  the  hardships  thrown  on  our  own 
trade,  though  ascribed  entirely  to  the  doings  of  the  War  Lord,  would 
not  have  befallen  us  but  for  the  piracy  tactics  of  England.  And 
that,  if  the  horrors  of  the  European  war  may  remind  us  of  mediaeval 
times,  her  reckless  warfare  on  trade  and  commerce  makes  bad  things 
worse. 

Without  her  doings  neither  Russia  nor  France  would  have 
mobilized,  and  we  would  not  have  this  terrible  European  war;  nor 
would  our  own  affairs  be  in  that  deplorable  state  of  depression  under 
which  we  are  now  suffering. 


